Respecting the Rule of Law in the John
Auffrey Murder Investigation
By Renford Engelbert Walsh
June 30, 2004
Over a month ago, an American civilian employee of the U.S. Department of Defense (John Auffrey) was murdered in Monrovia, Liberia. Since that time, the police has named four (4) suspects , arrested and detained three (3) of them, launched a manhunt for the main suspect, Emmanuel Mulbah (aka Boye T. Moore), and rounded up fifty (50) persons to assist with the investigation . Meanwhile, bounties have been announced by the NTGL Chairman (Gyude Bryant), the U.S. Ambassador (John Blaney), and the U.N. Secretary General Special Representative to Liberia (Jacques Klein). All of this indicate a high level of seriousness to prosecute the culprits yet there are some questionable acts associated with these events. These questionable acts create the potential for future violations of Liberian law so there is a need to examine them to determine if the rule of law is adhered to in the murder investigation.
Disturbing Events and Burning Questions
A number of disturbing events have occurred during the course of the murder investigation which leads one to question the commitment to the rule of law by the authorities. It appears that the murder investigation hasn't taken into consideration the rights of the suspects as enshrined in the relevant sections of Chapters 2 and 10 of the Liberian Criminal Procedure statutes and the Constitution of Liberia [see http://www.onliberia.org/con_1984_1.htm] . Thus, the following are causes for concern:
1. On June 3, 2004 , The Inquirer reported a statement attributed to the Liberian National Police (LNP) Director Massaquoi , that three(3) of the suspects ( who reportedly surrendered to authorities) have confessed [see http://www.theperspective.org/inquirer/johnauffrey.html]. The logical questions that follow are:
· Were they interrogated in the presence of defense counsel in accordance with section 2.3 of Liberia's Criminal Procedure statutes and article 21 (c) of the Liberian Constitution?
· Were they advised of their rights according to section 2.2(2) of the Criminal Procedure statutes and article 21 (c) of the Liberian Constitution?
· Were they charged within forty-eight(48) hours of their arrest in accordance with article 21(f) of the Constitution of Liberia?
· Have they been arraigned before any court of competent jurisdiction in accordance with section 10.11 of the Criminal Procedure statutes? If not, then why the delay?
2. On June 3, 2004, The Analyst newspaper reported that up to fifty (50) persons are under investigation in connection with murder [see http://allafrica.com/stories/200406030639.html]. This revelation leads to the following questions :
· Were their arrest based on warrants in accordance with sections 10.1(d) and 10.6 of the Criminal Procedure statutes ?
· Regardless of the nature of their arrest (with or without warrant) , have they been interrogated in the presence of counsel in accordance with section 2.3 of the Criminal Procedure statutes?
· Are they in spacious holding cells or are they sharing overcrowded prison facilities with convicted criminals ?
· If they were not formally arrested, then were they summoned by a court to answer to any charge of aiding and abetting the main suspect, in accordance with section 10.12 of the Criminal Procedure statutes?
3. On June 2, 2004, The Analyst reported that the National
Transitional Government of Liberia (NTGL) Chairman ( Gyude Bryant)
offered a US$3,000 reward, on behalf of the Government of Liberia,
to anyone who provides information leading to the arrest and successful
prosecution of the murder suspects [see http://analystliberia.com/Killers%20on%20the%20run.htm
]. The question that follows is:
· Did he receive approval from the National Transitional Legislative Assembly (NTLA) or is it part of a discretionary fund that has already been appropriated?
4. On May 26, 2004, Relief Web (a UN online news resource) reported
that the US Ambassador and the UN Special Representative also issued
bounties for the suspects [see http://www.reliefweb.int/w/rwb.nsf/480fa8736b88bbc3c12564f6004c8ad5/6cf928cab8a50b9285256ea700653775?OpenDocument].
The question that follows is:
· Is this legal under international law or is this a disregard for Liberian sovereignty simply because Liberia is in a vulnerable position and heavily dependent on international aid?
5. On June 3, 2004, The Inquirer newspaper reported an announcement by the LNP Director that three(3) police officers have been dismissed and disrobed for allegedly associating with the prime suspect. He also claimed that the level of association dates back to nineteen(19) years [see http://www.theperspective.org/inquirer/johnauffrey.html] . The logical questions that follow are :
· Have they been charged with any crime of aiding and abetting robbery [or assisting a fugitive]?
· If not, then why has the LNP declined to charge them if they're convinced that they aided and abetted the prime suspect based on their alleged confession?
· How does alleged long-term association of 19 years automatically translate to complicity in a crime ? What happened to due process?
· Was there any hearing held to determine the fate of those dismissed officers?
· Were the accused police officers allowed to consult legal counsel during their investigation?
· Is there an Internal Affairs Division within the LNP that conducts such investigation? If not, then which division reached the conclusion of complicity in the alleged crime of aiding and abetting the suspect(s)?
The Violations of Liberian Criminal Procedure
To many, the above questions may seem embarrassing and insensitive. After all, John Auffrey gave his life trying to assist Liberia with security reform so conventional wisdom should expect most, if not all, Liberians to simply express sympathy , condemnation of the murder, and allow other controversial issues to stand. Unfortunately, this writer prefers to look at the larger picture. If Liberians choose to remain quiet during times like these, then there should not be any complaining at a later date when the rule of law is disregarded in other cases. If the rights of accused suspects can be violated in the presence of United Nations Civilian Police ( UN CIVPOL ), then what should the public expect after their departure?
As it is often said, everyone is entitled to justice under the law. No one is above the law neither is anyone below the law. The accused suspects, as contemptible as they may be, are also entitled to due process under the law. It means that they must be charged within forty-eight (48) hours of detention, interrogated in the presence of counsel , and arraigned at a court of competent jurisdiction as early as possible, pending trial. Holding any group of suspects unconstitutionally pending the arrest of a main suspect is unacceptable and intolerable.
Article 21 of the Constitution spells out clearly the rights of accused persons . There is article 21 (c) which reads:
"Every person suspected or accused of committing a crime shall immediately upon arrest be informed in detail of the charges, of the right to remain silent and of the fact that any statement made could be used against him in a court of law. Such person shall be entitled to counsel at every stage of the investigation and shall have the right not to be interrogated except in the presence of counsel. Any admission or other statements made by the accused in the absence of such counsel shall be deemed inadmissible as evidence in a court of law."
And then, there’s section 2.3 of the Liberian Criminal Procedures statutes . It states : "No peace officer or other employee of the Republic shall interrogate, interview, examine, or otherwise make inquiries of a person accused or suspected of an offense, or request any statement from him, including a confession of guilt, without first informing him of the following:
(a)The nature of the offense of which he is accused or suspected;
(b)That he has the right to have legal counsel present at all times while he is being questioned or is making any statement or admission;
(c)That he does not have to make any statement or admission regarding the offense of which he is accused or suspected;
(d)That any statement or admission made by him may be used as evidence against him in a criminal prosecution . "
Thus, the circumstances of the suspects' alleged confession can not be ignored . If obtained without the benefit of a defense counsel's presence or under duress, it is inadmissible in a court of law. Hence, there is a need to determine whether the Liberian National Police (LNP) has an audio or video recording of the date and time they advised the detainees about their rights as well as the circumstances of the alleged confession. Was there a lawyer present and who was he/she?
And what about the need to advise accused suspects of their rights? Besides article 21 (c) of the Constitution which requires that, there is section 2.2 (2) of the Criminal Procedure statutes which states :
"...As soon as practicable after arrival at the first place of custody upon an arrest or, where no arrest has been made, upon the initial appearance and submission of the accused to the jurisdiction of the court and at the commencement of every new stage of the proceedings, when an accused appears without legal counsel, the accused shall be advised of his right to retain legal counsel of his own selection and in all cases where the crimes charged are triable only in the Circuit Court, of his right to have legal counsel to represent him if he is financially unable to retain legal counsel..."
Since the Government claimed that three (3) suspects surrendered and were placed in custody , it is its responsibility to show that that they were advised of their right to legal counsel.
In the case of the 50 persons who are reportedly under investigation, it is difficult to determine their legal status under the law. According to section 10.1 of the Criminal Procedure statutes, the following definitions apply to arrest and summons:
" (a)... "Arrest" is the taking of a person into custody in order that he may be forthcoming to answer for the commission of an offense.
(b) A "notice to appear" is a written request issued by a peace officer that a person appear before a court at a stated time and place to answer for the commission of the offense set forth therein.
(c ) A "summons" is a written order issued by a court which commands a person to appear before a court at a stated time and place to answer for the commission of the offense set forth therein.
(d) A "warrant of arrest" is a written order from a court directed to a peace officer commanding him to arrest a person..."
Thus, there is a need for the LNP to clarify their status. If they're in custody while the investigation proceeds, then technically they are under arrest. If that situation applies, then the statutes associated with advising them of their right to remain silent, the right to legal counsel , the need to charge them within 48 hours, and arraign them before a court as early as possible apply.
Based on the news report that the police was "...rounding up suspects and would-be suspects..." during the investigation, it seems reasonable to assume that they were arrested. This leads to another question: on what basis? This is necessary because section 10.6 of the Criminal Procedure statutes requires the issuance of a warrant of arrest based on a complaint or indictment. The law states:
"...A warrant for the arrest of a person accused of an offense may be issued by a court under the provisions of this chapter (a) upon the filing of an indictment , or (b) when a complaint is preferred before a magistrate or justice of the peace charging that an offense has been committed and it appears from the contents of the charge and the examination, under oath or affirmation , of the complainant or other witnesses, if any, that there is reasonable ground to believe that an offense has been committed and that the person against whom the complaint was made has committed the offense."
Thus, one wonders whether an indictment was filed . If not, then that leaves the possibility of arrests without warrant but again, there are provisions for protecting the rights of accused under such circumstances. In section 10.11 (2) of the Criminal Procedure statutes, the law states:
"... An officer making an arrest where a warrant has not been issued, without unnecessary delay, shall take the arrested person before the nearest available magistrate or justice of the peace. The officer shall forthwith prefer a complaint under oath or affirmation setting forth the offense which the arrested person is charged with committing and cause a warrant of arrest to be issued thereon..."
Since these 50 persons rounded up during the investigation have technically been arrested, have they been taken to any magistrate or justice of the peace? Have the arresting officers affirmed the offense for which such persons have been charged with committing and have formal arrest warrants been issued? If all of these conditions have not been met, then their detention is illegal.
The Posting of Bounties by the NTGL and Foreign
The Posting of bounties by the NTGL without clarification about the legality of the funds is also an issue that is unacceptable. Today, it is Emmanuel Mulbah (aka Boye T. Moore). Tomorrow, it may be someone else. It could be used by a future corrupt president as an excuse to distribute funds to his cronies while claiming that the recipient(s) of the reward provided information to law enforcement . If the bounty is an amount as high as US $10,000 or even US$20,000 , that future president and his cronies could choose to share it and he/she could justify the use of bounty by citing the Gyude Bryant precedent. So, the question about the source of the bounty is a legitimate one that all Liberians need to ask.
Another potential problem is the likelihood that Emmanuel Mulbah may be injured by persons seeking to derive financial benefits from the reward. In the process of assisting the authorities with his arrest, they may choose to arrest him themselves and torture him prior to deliverance to the authorities. In the absence of clear-cut statutes that permit bounty hunters to operate in Liberia, it remains to be seen how the suspect's civil rights would be guaranteed.
The only law that allows for civilians to assist in the arrest of a suspect exists in section 10.5 of the Criminal Procedure statutes . According to the statutes, "...a peace officer or other authorized person making a lawful arrest may orally summon as many persons as he deems necessary to aid him in making the arrest and every person when so summoned by an officer or other authorized person shall aid him in the making of such arrest. A person summoned to aid a peace officer shall have the same authority to arrest as that peace officer or other authorized person and shall not be civilly liable for any reasonable conduct in aid of the officer making the arrest..."
Hence, the statute does requires a peace officer [a generic term for law enforcement officers] to summon particular person(s) to assist in making the arrest. It requires reasonable conduct by the civilians and indemnifies such person(s) from legal liability. Unfortunately, the law is vague on how the civilian(s) can be summoned. Should he/she be summoned in the presence of a peace officer or can the summons be broadcast on the radio for anyone to assist ? Until interpreted by a court , it is the assumption of this writer that the law requires the physical presence of a peace officer and does not endorse the use of bounty hunters.
The law is also silent on what constitutes reasonable conduct which means that a person claiming to be apprehending Emmanuel Mulbah on behalf of the authorities may physically assault him and claim that it was necessary to prevent any resistance of arrest. If that happens, he (Mulbah) could sue the Government of Liberia for hiring those bounty hunters who violate his rights on the grounds that they did not use reasonable conduct in the process of aiding the country's peace officers in his arrest.
On the issue of the potential violations of international law by diplomats who post bounties, it is a matter of principle. If posting bounty happens to be a violation of international law, then these diplomats may be creating future problems for the US and the UN because others may play copycat and post bounties on the heads of American citizens implicated in crimes in other countries . If that happens, bounty hunters may take the law into their own hands and the same Americans will cry foul. Moreover, Emmanuel Mulbah may exercise his constitutional right to sue the United States Government and the United Nations in a Liberian court. Under article 66 of the Liberian Constitution, the Liberian Supreme Court has original jurisdiction over cases involving diplomats and regardless of how the case is disposed of [with or without merit] , the publicity associated with the entire episode may prove embarrassing to both the US Government and the UN.
The last issue of concern is associated with the Chairman's use of funds. If the US and UN choose to criticize the Liberian Government about misuse of public resources , then how will they classify Gyude Bryant's allocation of US$3,000 without prior approval of the NTLA? Will they make an exception because it is in their interest or will they criticize the same Government that contributes a bounty to the arrest and prosecution of an American citizen's assailant?
Implications for Liberia's Human Rights Record and U.S. Foreign Policy
The main issue worth noting is the fact that any violation of the rights of Liberian criminal suspects while diplomats look the other way raises serious questions about their moral qualifications to lecture others about human rights violations. How will the US State Department issue a report next February on human rights in Liberia? Will they include references to violations of international law by diplomats, including the U.S. Ambassador and the UN Secretary-General's Special Representative to Liberia? Will they criticize the illegal detention of criminal suspects beyond statutory limits when an American citizen (Mark Kroecker) heads the UN CIVPOL , an organization charged with reforming the Liberian National Police (LNP)? Would it be fair for them to repeat the usual criticism of Liberian prison over-crowdedness when they condone the idea of detaining fifty (50) persons, an act which contributes to the problem?
Usually, when the Vital National Interests (VNI) of the Untied States stand to benefit from such silence , they look the other way and decline to criticize. One example is evident in the US Embassy's silence over then-President Charles Taylor's ban on the distribution of Osama Bin Laden but from the standpoint of civil rights, it was a violation of the civil rights of those Liberians who chose to sell or wear T-shirts with the photo of Bin Laden. So, remaining silent while the rights of suspects are violated in pursuit of US VNI is not a difficult issue for them.
The final note on this saga examines the role of Liberian human rights groups and the Liberian Bar Association. Where are Tiawon Gongloe, Dempster Browne, S. Kofi Woods II, and others when they are needed? For years, this writer has criticized persons like Tiawan Gongloe and institutions like the Catholic Justice & Peace Commission and the Liberian Bar Association for their biasness. The conviction was always based on the fact that Gongloe did not resign from the Interim Government of National Unity (IGNU) in protest over the 18-month unconstitutional detention of Peter Bonner Jallah Jr. (between October 1992 and April 1994) neither is there a recollection of any protest from the other entities named above. The only human rights activist who dared challenge the IGNU was Counselor Benedict Sannoh , head of the Center for Law & Human Rights Education (CLHRE) . He took the case to the Liberian Supreme Court and a landmark unanimous ruling was passed declaring Jallah's detention at ECOMOG base as unconstitutional. After the court ruling, two other lawyers -- Charles Brumskine and Marcus R. Jones -- co-authored an article in the October 19, 1994 edition of The Inquirer concurring with the court's decision. Meanwhile, other activists like then-Catholic JPC's director (S. Kofi Woods II ) and the rest of the Liberian Bar Association remained silent probably because it wasn't the politically correct thing to do. Ten years later, the same silence is evident because some may not be bold enough to do the politically incorrect thing of raising these questions.
Maybe, they don't want to offend the U.S. Government and jeopardize potential sources of funding for their organizations. Maybe, they don't want to diminish their popularity among Liberians at home and abroad. Maybe, they just don't care. Or maybe, they're only interested in cases where popular sentiments lean. Whatever the reason(s), they should not expect to be held in high regard by some observers like this writer because it's easy to read between the lines and see that they are not totally committed to human rights. This is shameful and it says a lot about the level of commitment by Liberians to the cardinal principles of human rights. No wonder the country remains in a mess !!!